Mahulawde v. Fashion Institute of Technology

Background

The court conducted a private review of documents withheld by the defendants and the accompanying privilege log. The materials were submitted under an earlier court order. The plaintiff’s motion to compel also concerned the deposition of Deliwe Kekana, but the parties had resolved that portion of the dispute separately.

The defendants withheld documents under the asserted “self-critical analysis” privilege. The documents related to the Fashion Institute of Technology’s handling of matters involving the plaintiff’s allegations of discrimination, hostile work environment, and retaliation concerning her course assignments and retention as an instructor.

Court’s Analysis

The court stated that the existence of a self-critical analysis privilege remained unresolved in the relevant federal appeals circuit. It therefore assumed, without deciding, that the privilege might exist. Even under that assumption, the court found that the privilege did not apply to the documents at issue.

The court compared the dispute to a Supreme Court decision rejecting a university’s claim that a common-law privilege protected peer-review documents. It found that the materials here were even less suited to protection. Most consisted of factual accounts by employees, including memoranda of meetings between administrators and employee witnesses. The court said these materials were not materially different from interview or factual memoranda ordinarily produced in discovery, and the defendants did not claim that attorney-client privilege or attorney work-product protection applied.

The court explained that, to the extent the self-critical analysis privilege exists, it protects analysis or evaluation itself—not the underlying facts. The withheld documents were overwhelmingly factual. They included witness statements, staff observations, meeting and scheduling emails, document exchanges, information about a complaint being conveyed to the defendants’ Title IX coordinator, and information about meetings and their attendees. The court found that these materials were not protected evaluative analysis.

The court also rejected the defendants’ concern that disclosure would discourage internal investigations or self-evaluation. To the limited extent that some documents contained commentary that could be considered evaluative, the court was unpersuaded that disclosure would create the claimed harmful effect. It further found that the documents could be centrally important to the plaintiff’s allegations and that her need for them outweighed any potential harm to the defendants from disclosure.

Ruling

Judge Engelmayer granted, in full, the plaintiff’s motion to compel production insofar as the defendants had withheld items under the self-critical analysis privilege. The court ordered the documents to be produced to the plaintiff by the close of business on Monday, December 5, 2022.

For a spreadsheet containing Social Sciences Department staff information, the court directed the defendants to produce a redacted version with individuals’ names and employee identification numbers obscured. The court specified that this redaction was required to protect privacy, not because of the self-critical analysis privilege.